Co-authored by Geoffrey Roche
On March 10, 2016, the French data protection agency (« CNIL ») pronounced a €100.000 ($111,715) fine against Google Inc. for failure to comply with its formal injunction of May, 2015 ordering the company to extend delisting to all the search engine’s extensions.
Further to a decision of the Court of Justice of the European Union (“ECJ”, C-131/12) of May 13, 2014, the right to be delisted is applicable to search engines. As a result, each EU residents is entitled – provided that s/he has legitimate grounds – to request to the search engines to remove one or more results displayed following a search made on the basis of his/her name.
In order to comply with such decision, Google created on May 29, 2014 a new on-line form allowing users to request such removals, the delisting being only carried out on European extensions of the search engine.
Since then, Google registered more than 400.000 requests, France being the country which sent the most requests (more than 80,000 being noted that 51.5% of them are accepted by Google).
Nonetheless, considering that Google did not fully comply with the ECJ decision, in May 2015, the French Data Protection watchdog ordered to Google to extend the delisting to all domain names of the search engine within 15 days of its decision. The informal appeal filed by Google against such an injunction was rejected by the French Authority in September, 2015.
Then, CNIL decided to initiate a sanction procedure against the company.
During the process, Google in particular put forward that:
- CNIL was exceeding its own powers given that it has only jurisdiction on the French territory and could not require a worldwide delisting;
- in January 2016, it decided to extend the right to delisting on all Google search engines accessed from the country of the person making the request;
- a global delisting would disproportionally infringe the freedom of speech and the right to information.
CNIL dismissed Google’s arguments and ruled that:
- CNIL was entitled to require such a delisting given that “Google search” was one and single data processing having different local extensions and that the company was operating on the French territory through its French subsidiary;
- the limitation of the delisting, even with Google’s new improvement, could not be considered a sufficient means to satisfactorily guarantee the rights of data subjects according to the ECJ’s decision as it would still be possible for a French citizen to access to the data for instance when travelling outside of the EU;
- Regarding the freedom of speech limitation and right to information, the extension would not have any effect on such rights as the delisting process never led to deletion of the information but only to the removal of specific links following a search made on the basis of the plaintiff’s name.
There is a strong likelihood that Google Inc. is going to file an appeal against CNIL’s decision which means that the right to be forgotten will still give rise to interpretation as to its scope of application.